RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01825
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041017

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard, E5, Food Service, medically separated for “chronic low back pain” with a disability rating of 10%.  

CI CONTENTION:  The applicant requests consideration of all conditions in his application.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040901	VARD - 20050404	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5243	10%	DDD of Lumbar Spine	5242	10%	20050127	
Major Depression	Not Unfitting	MDD, Panic Disorder w/o Agoraphobia and Methamphetamine Dependence	Not Service Connected	
Adjustment Disorder	Not Unfitting			
Substance Abuse	Not Unfitting			
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The Informal PEB adjudicated the back chronic condition as unfitting, existing prior to service (EPTS) and not permanently service aggravated, and therefore not compensable.  The Reconsideration PEB upheld the original PEB’s EPTS findings but adjudged that the condition was compensable with application of 10 USC 1207a (8-year rule).  

According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in April 2000 after lifting heavy pipe metal.  His condition was diagnosed as “acute lower back strain.”  He was treated conservatively and his symptoms resolved.  In April 2001 he reinjured his back, but pain symptoms resolved over time.  Upon mobilization in June 2003 with increased activity, his back began to hurt.  He had an acute episode of low back pain after shoveling, which was treated conservatively and he was referred to orthopedics.  Magnetic resonance imaging (MRI) studies in Jul 2003 showed L5-S1 disc herniation with compression of the S1 nerve root and degenerative disk disease.  The CI was treated with physical therapy and pain medications.  

Evaluation by orthopedics in August 2003 summarized the above MRI and exam documented an abnormal gait (back flexed at hips) with painful motion on hip flexion.  There was left toe weakness with pain.  Motor testing was otherwise normal, reflexes were normal, and provocative testing for radicular signs were negative.  The assessment was herniated disk at L5-S1 and continued medication as treatment.  Surgery versus MEB was discussed by the orthopedic surgeon in January 2004 and MEB processing was started.  Despite treatment including physical therapy, medications and epidural steroid injection, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for a MEB.  

At the MEB examination dated February 2004, 8 months prior to separation, the CI reported continued pain from his back injury.  Physical examination showed mild scoliosis (lateral curves), positive straight leg raise test (for radicular symptoms) with increased pain in low back pain and pain radiation into the buttocks.  There were no muscle spasms.  Motor strength and reflex testing were normal.  There was decreased sensation of the outer left thigh to the mid shin “consistent with partial L5 dysfunction.”  There was also decreased sensation in the outer right calf and lateral foot “consistent with partial S1 dysfunction.”  The diagnosis was “Lumbar spine:  Degenerative disk disease, with chronic back pain and right radiculopathy ….”  The NARSUM summarized the MEB exam and included an additional ROM evaluation.

At the VA Compensation and Pension (C&P) examination on 27 January 2005, performed 3 months after separation, the CI reported pain radiating to the lower extremities (to the knees), left worse than right, about once a week, and used a back brace.  He reported that he had numbness at times involving the whole left foot.  The pain was aggravated with trunk rotation and prolonged standing.  The CI reported his pain was relieved with “medication (including daily narcotic), ice and rest.”  The CI reported he also avoided recreational and domestic activities.  The CI reported no flares of back pain.  On physical examination the CI had normal gait and spinal contour, no paraspinal muscle spasm, normal reflexes, normal strength, and examination maneuvers for radicular signs were negative.  The CI maintained light touch and pinprick sensation in the legs.  ROM testing is summarized in the chart above, and there were no additional limitations after repetitive testing due to weakness, fatigue, lack of endurance or incoordination.  VA records indicate the CI had back surgery (L5-S1 decompression fusion with instrumentation) in February 2005 (approximately 4 months after separation), and re-injured his back in a motor vehicle accident in December 2006.  VA exam in February 2008 led to a VA 20% back rating effective from September 2007.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under code 5243 (intervertebral disc syndrome), citing painful motion.  The VA also assigned a 10% rating using code 5242 (degenerative arthritis of the spine) based on the VA C&P examination 3 months after separation, citing painful motion.  The Board adjudged that the post-separation surgery and findings from the remote VA exam in 2008 were not indicative of the CI’s disability picture proximate to separation.  The Board agreed that a 10% rating, but no higher, was justified for the presence of painful motion; or limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees); reported on all examinations proximate to separation.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with symptoms of radiating pain documented in the treatment records and episodic complaints of lower extremity numbness; however, examinations indicated normal strength, reflexes and gait, and the sensory changes did not affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the major depression, adjustment disorder with anxious mood, and substance abuse conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The major depression, adjustment disorder with anxious mood, and substance abuse conditions were not profiled or judged to fail retention standards.  Substance abuse (with a prior court-martial) was implicated in the commander’s statement.  All conditions were reviewed and considered by the Board.  Adjustment disorder with anxious mood and the substance abuse are “conditions and circumstances not constituting a physical disability” IAW DODI 1332.38, E5 in effect at the time and are therefore not physical disability compensable conditions.  The CI’s depression was noted to have begun in the 1990s, “following divorce proceedings.”  MH consult indicated the depression condition was EPTS and met retention standards.  The post-separation VA C&P exam also indicated the depression condition was EPTS and not service connected.  There was insufficient evidence in the record that the CI’s depression was permanently service aggravated and there was no performance based evidence from the record that the major depression condition significantly interfered with satisfactory duty performance.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended major depression, adjustment disorder with anxious mood, and substance abuse conditions the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140418, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		
SAMR-RB						

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXX, AR20160006826 (PD201401825)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA